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State Ex Rel. Katherine A. Dearing v. Industrial Commission of Ohio and

October 25, 2011

STATE EX REL. KATHERINE A. DEARING, RELATOR,
v.
INDUSTRIAL COMMISSION OF OHIO AND AKRON METROPOLITAN HOUSING AUTHORITY,
RESPONDENTS.



The opinion of the court was delivered by: Sadler, J.

Cite as State ex rel. Dearing v. Indus. Comm.,

(REGULAR CALENDAR)

DECISION

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

{¶1} In this original action, relator, Katherine A. Dearing, asks this court to issue writs of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order finding that she was overpaid compensation for permanent total disability ("PTD") and temporary total disability ("TTD") and to vacate its order finding that she engaged in fraud.

{¶2} Pursuant to Civ.R. 53 and Loc.R. 12(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law, which is appended hereto. The magistrate concluded that the commission did not abuse its discretion when it determined that relator had improperly received both PTD and TTD compensation and when it found that relator had committed fraud. Accordingly, the magistrate recommended that this court deny the requested writs of mandamus.

{¶3} Relator has filed objections to the magistrate's findings of fact*fn1 and conclusions of law. No response has been filed by respondents.

{¶4} In her objections to the magistrate's findings of fact, relator argues that the magistrate erred in finding that TTD was paid through April 30, 2007. According to relator, an investigative report prepared by the commission's Special Investigations Department ("SID") indicates that TTD was actually paid through June 8, 2006.

Because the SID report does not show receipt of TTD compensation in 2007, relator contends that the magistrate erroneously "relie[d]" on an IRS 1099 document from 2007 as evidence she was working while receiving TTD compensation.

{¶5} Contrary to relator's claim, it was the district hearing officer ("DHO"), not the magistrate, who found that TTD was paid through April 30, 2007. The magistrate merely referenced the DHO's finding in a footnote to highlight the difference between the date calculated by the DHO and the date arrived at by relator. According to the magistrate, page three of relator's brief argued that TTD compensation was paid through January 31, 2006 based on C-84 disability forms completed by relator and her physician of record. Aside from recognizing these differing accounts, the magistrate did not adopt the April 30, 2007 date over the January 31, 2006 date.

{¶6} Relator also challenges statements made by the DHO and the staff hearing officer ("SHO") as if they were "findings of fact" rendered by the magistrate. Although the magistrate's findings of fact quoted from the orders of the DHO and SHO, the magistrate did so to "set forth the evidence and facts relied upon by the commission." (Magistrate's Opinion at ¶15. Emphasis added.) The magistrate did not necessarily endorse every factual finding and legal conclusion rendered by the DHO and the SHO. Accordingly, relator's objections to the magistrate's findings of fact are overruled.

{¶7} In her objections to the magistrate's conclusions of law, relator argues that there was not sufficient evidence upon which the SHO could find overpayment of TTD, overpayment of PTD or fraud. These objections fail to raise any new issues and simply reargue the contentions which were presented to, and sufficiently addressed by, the magistrate. Upon review of the magistrate's decision, an independent review of the record, and due consideration of relator's objections, we find the magistrate has properly determined the pertinent facts and applied the appropriate law. We, therefore, adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein.

{¶8} Accordingly, relator's objections to the magistrate's decision are overruled, and the requested writs of mandamus are hereby denied.

Objections overruled;

writs of mandamus denied.

BRYANT, P.J., and FRENCH, J., concur.

Nos. 10AP-474 and 10AP-475 5

A P P E N D I X

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Nos. 10AP-474 and 10AP-475

State ex rel. Katherine A. Dearing, Relator, : Industrial Commission of Ohio and Akron Metropolitan Housing Authority, Respondents.

(REGULAR CALENDAR)

MAGISTRATE ' S DECISION Rendered on June 29, 2011

Barrett & Davis, and Thomas E. Davis, for relator.

Michael DeWine, Attorney General, and Stephen D. Plymale, for respondent Industrial Commission of Ohio.

IN MANDAMUS

{¶9} Relator, Katherine A. Dearing, has filed these mandamus actions requesting that this court issue writs of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its orders which found that relator was over-paid both permanent total disability ("PTD") and temporary total disability ("TTD") compensation because she was engaged in work activity while receiving both forms of compensation and, further, in finding fraud.

Findings of Fact:

{¶10} 1. Relator sustained a work-related injury on December 19, 2002 and her workers' compensation claim has been allowed for the following conditions:

Contusion scalp (head); cervical disc displacement C4-5 and C5-6 with myelopathy; herniated disc and spondylosis at L4- 5; cervical disc herniations at the C3-4 and C6-7 levels; cervical spondylosis with myelopathy; complex regional pain syndrome/reflex sympathetic dystrophy right upper limb; flexor tenosynovitis of the right index, middle, and ring fingers.

{¶11} 2. According to her brief, relator received TTD compensation for the period "January 1, 2005 through January 31, 2006"*fn2 based upon C-84 disability forms completed by relator and her physician of record. (Relator's brief, at 3.)

{¶12} 3. On "May 4, 2007," relator filed an application for PTD compensation. (Relator's brief, at 3.)

{¶13} 4. Ultimately, PTD compensation was awarded beginning May 1, 2007 based solely on the medical factors alone and without consideration of relator's non- medical disability factors.

{¶14} 5. In April 2007, the Ohio Bureau of Workers' Compensation ("BWC")

Special Investigations Division ("SID") received an anonymous tip from a person claiming that relator had "been working at the Akron Arid Club as the Bingo Chairperson while being compensated in gift cards." As a result, BWC SID agents began an investigation which ultimately led to the filing of a motion to terminate both relator's PTD and TTD compensation and asking the commission to find an over-payment and fraud.

{¶15} 6. The SID report and documentation comprises over 300 pages (1 to 325). The evidence collected includes personal observations by SID agents, statements from fellow members and officers of the Akron Arid Club ("club"), copies of 1099s issued to relator, reimbursement requests submitted by relator, gift card tracking sheets, copies of 7 different meeting notes from the club's Board of Directors, the Attorney General's Site Inspection Report, BWC warrants, and PTD contact letters. The magistrate finds that the best way to succinctly set forth the evidence and facts relied upon by the commission finding over-payments of both PTD and TTD compensation can be found in the commission's various orders.

Over-payment of PTD compensation

{¶16} SHO order from hearing held April 9, 2009:

It is the order of the Staff Hearing Officer that the Injured Worker engaged in work activity while receiving Permanent Total Disability benefits.

This order is based on the Bureau of Workers' Compensation Special Investigations' Report of Investigation dated 09/23/2008. This report supports a finding that the Injured Worker worked as a Bingo Chairperson for the Akron Arid Club.

Also, the Injured Worker intentionally concealed her activities from the Bureau of Workers' Compensation in order to receive ...


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